Friday Links


We here at Abnormal Use are enjoying our Thanksgiving holiday, and we hope that you, dear readers, are doing the same. Above, in the spirit of the occasion, you’ll find the cover of Scooby-Doo! #114, published not so long ago in 2007. It appears that our heroes, Scooby and Shaggy, are having an eventful Turkey Day, wouldn’t you say?

We’ve been watching “Marvel’s Daredevil” on Netflix. You may recall Daredevil as the comic book superhero who is a lawyer by day and vigilante hero by night. We’ve written about him a few times over the years in light of his connection to the legal profession. The new television show is interesting, but its depiction of BigLaw is a bit off. Apparently, Daredevil, whose real name is Matt Murdock, and his law partner, Foggy Nelson, worked as “interns” at a large New York City firm before starting their own shop. If the timing of the episodes is to be believed, they graduated from law school, worked as “interns,” awaited promotion to become full associates at the big firm, and then quit before becoming associates. Is this how NYC firms operate these days?

In case your counting, it’s now left than a month until the release of Star Wars: The Force Awakens.

Congratulations to the new members of the ABA Journal‘s Blawg Hall of Fame. We made that list in 2014.

Happy Thanksgiving!


We’re not entirely certain what is happening on the cover of Batman: Li’l Gotham #2, published not so long ago in 2012. We can’t say we’re familiar with the concept of “Li’l Gotham,” either, but as we here at Abnormal Use continue to grow older, we have become comfortable with not understanding every new bit of popular culture. But, as you can see, it has -something- to do with Thanksgiving, so it is appropriate for comment on this day, Thanksgiving 2014. You’d think Batman might have better things to do, though, than harass pilgrims and turkeys and such, though.

All that said, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your friends and family a Happy Thanksgiving. Be safe, be merry, and be festive.

Thanksgiving in 1810, 1910, and 2015

Here we are again on the Monday before Thanksgiving. Accordingly, it’s time that we once again direct you to our 2010 Thanksgiving post entitled “Thanksgiving in 1810, 1910, and 2010.” Back then, in our early blogging days, we somehow unearthed a century old magazine article in which the writer, a resident of 1910, looked back 100 years and marveled at the incredible social and technological change that occurred in the previous ten decades. That writer also looked forward to 2010 and briefly speculated how we, as citizens of the 21st century, might look back at those who lived in his era 100 years before. That article struck such a chord with us, and it’s become a Turkey Day tradition for us. So, today, we remind you of it once again and direct you back to it 105 years after its publication. (That neat illustration above – and many others like it – comes directly from the 105 year old article.). Have a look, and let us know what you think.

Friday Links


Take a look at the comic book cover above – that of Destroyer Duck #1, published way, way back in 19812. It appears to be a straightforward depiction of action and violence, right? But what caught our eye was the “Special Lawsuit Benefit Edition” language emblazoned across the top of the cover. We don’t know anything about that, but we are certainly going to look into it.

Over at the Litigation and Trial blog, Max Kennerly offers a post called “All About Objecting To The Form Of A Question At A Deposition.” There are some cases on this issue which you may not have seen. Once you’ve read Max’s new post, you may want to revisit this piece from our own archives.

We have some good news. Bruce Springsteen will apparently be the musical guest for “Saturday Night Live” on December 19.

Our favorite legal tweet of late comes from our friend Keith Lee of the Associate’s Mind blog. In it, he remarks upon the current state of law blogs. (Speaking of Keith, he has updated his Social Media Subpoena Guide, which you can access here).

Friday Links


Whoa. It’s Friday the 13th. Above, you’ll find the cover of Friday The 13th Fearbook #1, published not so long ago in 2006 (and well after the heyday of 1980’s slasher movies). We’ve not read that issue, and to be honest, we don’t plan to. But as you might imagine, there are only so many Friday The 13th pop culture references.

This is your reminder that revisions to the Federal Rules of Civil Procedure go into effect on December 1, 2015. You might want to look into that.

In case you had not heard, our own  John E. Cuttino has been named President-Elect of DRI–The Voice of the Defense Bar (DRI) and will serve as President of DRI beginning October 2016. We congratulate John, and we encourage you to follow him on Twitter at @SCLitigator.

Our favorite legal tweet of the week concerns the perils of law libraries and the like:

Star Wars and the Abnormal Use Law Blog: A History


We must admit that we are growing more and more excited about the release of the new Star Wars movie. Perhaps we’ll be disappointed, just as we were in 1999 when we first caught a glimpse of the wretchedness that was The Phantom Menace. We’ll see. Get this: If you search the Abnormal Use archives for the search term “Star Wars,” you’ll receive 28 results (many of which arise from references we’ve made on our weekly Friday Links post).

Apparently, though, we were once more skeptical of the new film. Back in 2013, we wrote:

Mark our words: The casting of Harrison Ford, Mark Hamill, and Carrie Fisher in the new Star Wars sequels is bad, bad news. Trust us on this one. We’re nostalgic, too, perhaps overly so. But we sense doom on this one. Check back with us in 2015, and we’ll collect our accolades and vindication.

What do you expect from us? We are inconsistent on this issue. Back in 2012, we remarked that it was “a bittersweet topic for us, to be certain.” We’ve even given George Lucas some grief over the years for trying to tie the Star Wars narrative – which takes place a long time ago, in a galaxy far, far away – to Valentine’s Day. But back in 2010, we noted that “any court in the land would find that 1980’s The Empire Strikes Back is the best film of the Star Wars series as a matter of law.”

In one or our earliest Friday Links posts, we cited several courts that have attempted to describe the Star Wars universe in their opinions. Our favorite:

Darth Vader is a huge, malevolent figure dressed entirely in flowing black robes, including a black cape which reaches to the floor. His face is masked by a grotesque breath screen with sharp angles and menacing protrusions. He wears a black helmet of flared design and is armed both with a light saber and his command of The Force, a cosmic power tapped by the Jedi Knights, a vanishing breed of crusaders for good from whose ranks Darth Vader has defected. Darth Vader has significant confrontations in the movie with his former teacher, Ben (Obi-Wan) Kenobi, who is now the Jedi Knight mentor of the young and heroic Luke Skywalker, and with Luke himself; the first battle is fought with light sabers and the second with spaceships.

See Ideal Toy Corp. v. Kenner Prods. Div. of General Mills Fun Group, Inc., 443 F.Supp. 291, 297-98 (D.C.N.Y. 1977).

We like that there is federal judicial authority for the proposition that Darth Vader is malevolent.

Our favorite, as you might suspect, is our 2011 April Fool’s Day post, entitled “Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (something which we previewed in an early post here). In fact, we cited that fake case in this year’s April Fool’s Day post, “Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On “1990’s Estoppel” Grounds.” Those were absolute joys to write, we must say. Cathartic, in fact.

By the way, now is a good time to revisit the Drug and Device Law blog’s magnus opus on Star Wars, as well. Click here to revisit that piece.

Veterans Day


We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veterans Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

To commemorate the occasion, we direct your attention to the cover of The ‘Nam Magazine #7, published way, way back in 1989.

Thank you again to our veterans for their service.

Social Media Discovery of Products Liability Issues

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Jim Dedman saw the publication of his “Social Media Discovery of Products Liability Issues” piece in the most recent issue of DRI’s Strictly Speaking (for which Jim happens to serve as editor). Here’s the first two paragraphs:

Much has been written about the value of investigations into the social media presence of Plaintiffs in litigation. However, such advice typically centers upon the potential discovery of statements or photographs which contradict a Plaintiff’s testimony about his or her damages. Many a diligent practitioner has located compromising evidence which impeaches a Plaintiff’s testimony as to his or her purported injuries or limitations. Practitioners should also consider expanding the scope of their social media discovery efforts to include a Plaintiff’s online commentary regarding the use of the underlying product in products liability cases. These days, in an era when individuals offer online commentary about the most minute details of their lives, take photographs of their meals in order to post such images on Instagram, or share with their online communities their latest purchases or experiences, there is an increasing likelihood that such individuals may have commented about the purchase or use of the products being litigated.

In a recent case, a Plaintiff spent considerable time and energy excoriating a product which she felt caused her damages. Specifically, in this products liability case which resulted in flooding and damages to the home, the Plaintiff utilized Twitter, Facebook, and a personal blog created solely for the purpose of exploring her damages related to the product and her home. Over the course of multiple blog posts, the Plaintiff attempted to portray herself as a burgeoning expert the types of injuries she claimed to have suffered. These posts were at least initially difficult to locate due to the fact that the writer had adopted a pseudonym of sorts, and thus, they would not have been located but for diligent efforts. Certainly, although this particular Plaintiff created far more online evidence than a typical litigant, claimants still seem to forget the potential effect of their online remarks on their pending or subsequent litigation. In light of these issues, wise practitioners should search not just for social media profiles but also more specific commentary by a Plaintiff relating to the product. This can be done in several ways.

You can read the full article here.

Friday Links


“No matter what the jury decides, the secret empire demands death,” proclaims the cover of Marc Spector: Moon Knight # 17, published way, way back in 1990. That doesn’t sound like something you would find in the pattern jury instructions, does it? We do suppose, though, that if your name is Marc Spector then you are somehow destined to become a cryptic superhero.

Congratulations to our own Ron Tate, who was recently chosen to receive the Home Builders Association of South Carolina (HBASC) Thomas N. Bagnal Associate of the Year award. If you’re not already following Ron on Twitter, here’s your chance.

Speaking of social media, don’t forget that you can follow Abnormal Use on Facebook! Click here to do so.

Our favorite legal tweet of late concerns the famous monkey copyright case. Enough said:

Social Media Discovery – Timing is Key

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue.  There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery).  One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage.  Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.

It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying).  However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.

To address all potential needs in one volley, you can simultaneously serve the following:

1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.

2)  Subpoenas to any other social media entities you have identified.  Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.

3)  Requests to admit seeking to authenticate the profiles you informally located.  In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.

4)  Interrogatories and requests for production seeking copies of the private areas of the social media profile.  As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).

5)  Supplemental responses to your opponent’s discovery to you.  It is likely that your opponent has served discovery requests that call for the information you have located.  Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit).  This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.

6)  Preservation letter.  In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated.  You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.

When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case.  But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).

(This post was originally posted on the now defunct North Carolina Law Blog on November 16, 2011).